The majority believes that a hearsay
related rule, Federal Rule of Evidence 801(d)(1)(B), codifies this

absolute timing requirement. I do not. Rule 801(d)(1)(B) has nothing
to do with relevance. Rather, that Rule carves out a subset of prior consistent
statements that were formerly admissible only to rehabilitate a witness
(a nonhearsay use that relies upon the fact that the statement was made).
It then says that members of that subset are "not hearsay." This means
that, if such a statement is admissible for a particular rehabilitative
purpose (to rebut a charge of recent fabrication, improper influence or
motive), its proponent now may use it substantively, for a hearsay purpose
(i.e., as evidence of its truth), as well.

The majority is correct in saying that there are different kinds
of categories of prior consistent statements that can rehabilitate a witness
in different ways, including statements (a) placing a claimed inconsistent
statement in context; (b) showing that an inconsistent statement was not
made; (c) indicating that the witness' memory is not as faulty as a cross
examiner has claimed; and (d) showing that the witness did not recently
fabricate his testimony as a result of an improper influence or motive.
See United States v. Rubin, 609 F. 2d 51, 68 (CA2 1979) (Friendly,
J., concurring). But, I do not see where, in the existence of several categories,
the majority can find the premise, which it seems to think is important,
that the reason the drafters singled out one category (category (d)) was
that category's special probative force in respect to rehabilitating a
witness. Nor, in any event, do I understand how that premise can help the
majority reach its conclusion about the common law timing rule.

I doubt the premise because, as McCormick points out, other categories
of prior consistent statements (used for rehabilitation) also, on occasion,
seem likely to have strong probative force. What, for example, about such
statements introduced to rebut a charge of faulty memory (category (c)
above)? McCormick says about such statements: "[i]f the witness's accuracy
of memory is challenged, it seems clear common sense that a consistent
statement made shortly after the event and before he had time to forget,
should be received in support." McCormick on Evidence §49, at 105,
n. 88 (emphasis added). Would not such statements (received in evidence
to rehabilitate) often turn out to be highly probative as well?

More important, the majority's conclusion about timing seems not
to follow from its "especially probative force" premise. That is because
probative force has little to do with the concerns underlying hearsay law.
Hearsay law basically turns on an out of court declarant's reliability,
as tested through cross examination; it does not normally turn on the probative
force (if true) of that declarant's statement. The "timing" circumstance
(the fact that a prior consistent statement was made after a motive to
lie arose) may diminish probative force, but it does not diminish reliability.
Thus, from a hearsay perspective, the timing of a prior consistent statement
is basically beside the point.

At the same time, one can find a hearsay related reason
why the drafters might have decided to restrict the Rule to a particular
category of prior consistent statements. Juries have trouble distinguishing
between the rehabilitative and substantive use of the kind of prior consistent
statements listed in Rule 801(d)(1)(B). Judges may give instructions limiting
the use of such prior consistent statements to a rehabilitative purpose,
but, in practice, juries nonetheless tend to consider them for their substantive
value. See 4 J. Weinstein & M. Berger, Weinstein's Evidence ¶801(d)(1)(B)[01],
p. 801-188 (1994) ("[A]s a practical matter, the jury in all probability
would misunderstand or ignore a limiting instruction [with respect to the
class of prior consistent statements covered by the Rule] anyway, so there
is no good reason for giving one."). It is possible that the Advisory Committee
made them "nonhearsay" for that reason, i.e., as a concession "more
of experience than of logic." Advisory Committee's Notes on Fed. Rule Evid.
801(d)(1)(B), 28 U. S. C. App., p. 773 (also noting that the witness is
available for cross examination in the courtroom in any event). If there
was a reason why the drafters excluded from Rule 801(d)(1)(B)'s scope other
kinds of prior consistent statements (used for rehabilitation), perhaps
it was that the drafters concluded that those other statements caused jury
confusion to a lesser degree. On this rationale, however, there is no basis
for distinguishing between pre and postmotive statements,
for the confusion with respect to each would very likely be the same.

In sum, because the Rule addresses a hearsay problem and one can
find a reason, unrelated to the premotive rule, for why it does so, I would
read the Rule's plain words to mean exactly what they say: if a trial court
properly admits a statement that is "consistent with the declarant's testimony"
for the purpose of "rebut[ting] an express or implied charge . . . of recent
fabrication or improper influence or motive," then that statement is "not
hearsay," and the jury may also consider it for the truth of what it says.

Assuming Rule 801(d)(1)(B) does not codify the absolute timing
requirement, I must still answer the question whether, as a relevance
matter, the common law statement of the premotive rule stands as an absolute
bar to a trial court's admission of a postmotive prior consistent statement
for the purpose of rebutting a charge of recent fabrication or improper
influence or motive. The majority points to statements of the timing rule
that do suggest that, for reasons of relevance, the law of evidence never
permits their admission. Ante, at 5. Yet, absolute sounding rules
often allow exceptions. And, there are sound reasons here for permitting
an exception to the timing rule where circumstances warrant.

For one thing, one can find examples where the timing rule's claim
of "no relevancy" is simply untrue. A post-motive statement is relevant
to rebut, for example, a charge of recent fabrication based on improper
motive, say, when the speaker made the prior statement while affected by
a far more powerful motive to tell the truth. A speaker might be moved
to lie to help an acquaintance. But, suppose the circumstances also
make clear to the speaker that only the truth will save his child's life.
Or, suppose the postmotive statement was made spontaneously, or when the
speaker's motive to lie was much weaker than it was at trial. In these
and similar situations, special circumstances may indicate that the prior
statement was made for some reason other than the alleged improper motivation;
it may have been made not because of, but despite, the improper
motivation. Hence, postmotive statements can, in appropriate circumstances,
directly refute the charge of fabrication based on improper motive, not
because they bolster in a general way the witness' trial testimony, see
ante, at 8, but because the circumstances indicate that the statements
are not causally connected to the alleged motive to lie.

For another thing, the common law premotive rule was not as uniform
as the majority suggests. Cf. United States v. Abel, 469
U.S. 45, 50 (1984) (stating that where the common law was unanimous,
the drafters of the Federal Rules likely intended to preserve it). A minority
of courts recognized that postmotive statements could be relevant to rebut
a charge of recent fabrication, improper influence or motive under the
right circumstances. See, e.g., United States v. Gandy,
469 F. 2d 1134, 1135 (CA5 1972); Copes v. United States,
345 F. 2d 723, 726 (CADC 1964); State v. George, 30 N. C.
324, 328 (1848). I concede that the majority of courts took the rule of
thumb as absolute. But, I have searched the cases (and the commentators)
in vain for an explanation of why that should be so. See, e.g.,
McCormick on Evidence §49, at 105, and n. 88 (citing cases).

One can imagine a possible explanation: Trial judges may find
it easier to administer an absolute rule. Yet, there is no indication in
any of the cases that trial judges would, or do, find it particularly difficult
to administer a more flexible rule in this context. And, there is something
to be said for the greater authority that flexibility grants the trial
judge to tie rulings on the admissibility of rehabilitative evidence more
closely to the needs and circumstances of the particular case. 1 Weinstein's
Evidence ¶401[01], pp. 401-8 to 401-9 ("A flexible approach . . .
is more apt to yield a sensible result than the application of a mechanical
rule."). Furthermore, the majority concedes that the premotive rule, while
seemingly bright line, poses its own administrative difficulties. Ante,
at 15.

This Court has acknowledged that the Federal Rules of Evidence
worked a change in common law relevancy rules in the direction of flexibility.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.
S. ____ (1993). Article IV of the Federal Rules, which concerns relevance,
liberalizes the rules for admission of relevant evidence. See id.,
at ____ (slip op., at 7). The Rules direct the trial judge generally to
admit all evidence having "any tendency" to make the existence of a material
fact "more probable or less probable than it would be without the evidence."
Fed. Rules Evid. 401, 402. The judge may reject the evidence (assuming
compliance with other rules) only if the probative value of the evidence
is substantially outweighed by its tendency to prejudice a party or delay
a trial. Rule 403. The codification, as a general matter, relies upon the
trial judge's administration of Rules 401, 402, and 403 to keep the barely
relevant, the time wasting, and the prejudicial from the jury. See, e.g.,
Abel, supra, at 54 ("A district court is accorded a wide discretion
in . . . [a]ssessing the probative value of [proffered evidence], and weighing
any factors counseling against admissibility."); 1 Weinstein's Evidence
¶401[01] (discussing broad discretion accorded trial judge); 22 C.
Wright & K. Graham, Federal Practice and Procedure §5162 (1978
and 1994 Supp.).

In Daubert, this Court considered the rule of Frye
v. United States, 293 F. 1013 (CADC 1923), which had excluded scientific
evidence that had not gained general acceptance in the relevant field.
509 U. S., at ____ (slip op., at 5). Like the premotive rule here at issue,
the Frye rule was "rigid," setting forth an "absolute prerequisite
to admissibility," which the Court said was "at odds with the `liberal
thrust' of the Federal Rules." Id., at ____ (slip op., at 8). Daubert
suggests that the liberalized relevancy provisions of the Federal Rules
can supersede a pre-existing rule of relevance, at least where no compelling
practical or logical support can be found for the pre-existing rule. It
is difficult to find any strong practical or logical considerations for
making the premotive rule an absolute condition of admissibility here.
Perhaps there are other circumstances in which categorical common law rules
serve the purposes of Rules 401, 402, and 403, and should, accordingly,
remain absolute in the law. But, for the reasons stated above, this case,
like Daubert, does not present such a circumstance. Thus, considered
purely as a matter of relevancy law (and as though Rule 801(d)(1)(B) had
not been written), I would conclude that the premotive rule did not survive
the adoption of the Rules.

Irrespective of these arguments, one might claim that, nonetheless,
the drafters, in writing Rule 801(d)(1)(B), relied on the continued existence
of the common law relevancy rule, and that Rule 801(d)(1)(B) therefore
reflects a belief that the common law relevancy rule would survive. But,
I would reject that argument. For one thing, if the drafters had wanted
to insulate the common law rule from the Rules' liberalizing effect, this
would have been a remarkably indirect (and therefore odd) way of doing
so--both because Rule 801(d)(1)(B) is utterly silent about the premotive
rule and because Rule 801(d)(1)(B) is a rule of hearsay, not relevancy.
For another thing, there is an equally plausible reason why the drafters
might have wanted to write Rule 801(d)(1)(B) the way they did--namely,
to allow substantive use of a particular category of prior consistent statements
that, when admitted as rehabilitative evidence, was especially impervious
to a limiting instruction. See supra, at 3-4.

Accordingly, I would hold that the Federal Rules authorize a district
court to allow (where probative in respect to rehabilitation) the use of
postmotive prior consistent statements to rebut a charge of recent fabrication,
improper influence or motive (subject of course to, for example, Rule 403).
Where such statements are admissible for this rehabilitative purpose, Rule
801(d)(1)(B), as stated above, makes them admissible as substantive evidence
as well (provided, of course, that the Rule's other requirements, such
as the witness' availability for cross examination, are satisfied). In
most cases, this approach will not yield a different result from a strict
adherence to the premotive rule for, in most cases, postmotive statements
will not be significantly probative. And, even in cases where the statement
is admitted as significantly probative (in respect to rehabilitation),
the effect of admission on the trial will be minimal because the prior
consistent statements will (by their nature) do no more than repeat in
court testimony.

In this case, the Court of Appeals, applying an approach consistent
with what I have described above, decided that A. T.'s prior consistent
statements were probative on the question of whether her story as a witness
reflected a motive to lie. There is no reason to reevaluate this fact bound
conclusion. Accordingly, I would affirm the judgment of the Court of Appeals.